England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
CHANCERY LIST
(HIS HONOUR JUDGE RICH QC)

IN THE ESTATE OF THOMAS WILLIAM HANCOCKS DECEASED

		Royal Courts of Justice Strand, London WC2
		1 May 1998

LADY JUSTICE BUTLER-SLOSS:

1. This is an appeal from the order of HH Judge Rich QC sitting at the Central London County Court on 5th November 1996. The application to the court was made by a daughter, whom I shall call the plaintiff, under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975, (the 1975 Act), for reasonable financial provision from the estate of her father. The judge found that the will did not make reasonable financial provision for the plaintiff and awarded her maintenance of £3000 a year. The appellants are her brothers and one sister, the defendants to her application.
2. The deceased father, whom I shall call the father, made his last will on the 18th February, 1980. He died on 7th September 1985 aged 87, leaving a widow, three daughters, one the plaintiff, and four sons. The plaintiff is his eldest daughter and was born on the 25th April 1927. She is now nearly 71. The estate, at the time of the father`s death, comprised his house in which he and his wife had lived, money and chattels to a net value of approximately £80,000 and a plot of land, called Plot 3. The land was used for the family business, Hancock Brothers, carried on at the time of his death by his four sons and his daughter Sally, the fourth to eighth defendants. Hancock Brothers were granted a formal lease of Plot 3 in 1979. By clause (4) of the will Plot 3 was devised specifically to Hancock Brothers. Its value for probate was £100,000. The father left his wife the £80,000 and the house. There was provision in clause (5) of the will that, if his wife predeceased him, the remainder of the estate was to be divided between the plaintiff, his other daughter Joan and his 7 grandchildren. By clause (6) he expressed the wish that if his wife survived him she would make provision in her will for the two daughters and 7 grandchildren.
3. Hancock Brothers was at all times a flourishing business. By contrast the plaintiff`s circumstances had always been somewhat precarious. She had left home at the age of 19 to be married. From 1962 to 1967 she and her husband together managed a public house. She separated from her husband in 1967. Thereafter she returned to live nearby to her family and from time to time with different members of the family. In 1977 she began to live in Manchester with Mr Pearce. She shared his house and the judge found that they lived as if husband and wife. They did not marry. For a period about the time of her father`s death she was employed by Hancock Brothers on a low wage in a menial position. After the death of her father the plaintiff issued a caveat but did not proceed to contest the will. Probate was granted on the 26th February 1986. She then issued the originating summons on the 26th August 1986.
4. In 1989, after the application under the 1975 Act by the daughter, there was a dramatic change in the value of Plot 3 and of the fortunes of those engaged in the business of Hancock Brothers. The brothers had over the years bought land adjacent to plot 3 and which adjoins the M40 motorway. Tesco`s bought the land, including Plot 3 on the 4th July 1989, initially for £9 million later increased to £13 million when they obtained planning permission for a superstore. The price paid for the freehold reversion on Plot 3 was agreed to be apportioned correctly at £840,000 subject to a capital gains tax liability of £177,000. The net figure of £663,000 was substantially greater than the original probate valuation of Plot 3 at £100,000. That increase in the value of the net estate of the father transformed the plaintiff`s application, even though it may be regarded as representing a windfall. The widow died after the sale to Tesco`s but before the hearing of the application, and by her will the plaintiff received a legacy of £1000 and the other daughter, Joan, a legacy of £2000. The plaintiff made no application under the 1975 Act in respect of her mother`s estate.
5. The main issues which have arisen on this appeal are

a. whether the failure of the disposition of the estate of the deceased to make any provision for a daughter aged 58 at the time of death of the father and 69 at the date of hearing was such as not to make reasonable financial provision for her and,

b. Since the judge found that, at the time of death of the deceased, it was not unreasonable for the will to have made no financial provision for the plaintiff, ought a subsequent windfall to the estate change the position and make the failure to make provision unreasonable on the subsequent facts at the date of the hearing?

6. Section 1 of the 1975 Act provides for a child of the deceased to apply for an order under section 2 on the ground that the disposition of the deceased`s estate, in this case by will, is not such as to make reasonable financial provision for that child. A child of the deceased of any age has the right to make the application. But in respect of that child of the deceased the reasonable financial provision is limited to maintenance.
7. In re Coventry decd [1980] Ch. 461 in his judgment, which was upheld on appeal by this Court, Oliver J set out certain guidelines in respect of the approach of the courts to the (then) new legislation. At page 469 Oliver J considered the provisions of section 3 to which I refer below. He said at page 469G:-

"these matters have to be considered at two stages -first in determining the reasonableness of such provision (if any) as has been made by the deceased for the applicant`s maintenance and, secondly, in determining the extent to which the court should exercise its powers under the Act if, but only if, it is satisfied that reasonable provision for the applicant`s maintenance has not been made."

The defendants have not appealed the amount awarded to the plaintiff and on this appeal this Court is only concerned with the first stage.

8. Section 3 (1) sets out the criteria to which the court shall have regard in exercising its powers. Those criteria include the financial resources and financial needs of the applicant now and in the foreseeable future, (section 3(1)(a). Although Mr Crawford, who appeared for the defendants, suggested that the plaintiff was not in a poor financial position, the judge found that her resources were extremely limited and that she was effectively dependent upon Mr Pearce apart from her pension. Mr Pearce`s resources were also limited and were largely restricted to his pension and disability allowance. The judge said at page 11 of his judgment:-

"There is little difficulty in accepting that the provision which she presently enjoys for her own maintenance is extremely limited, that she is - in the words used in the Coventry case - in stringent circumstances and that therefore it might well be said that the resources that she has are less than reasonably required for her own maintenance. In so far as her resources fall short of such level the will does not provide for it. I think this shortfall may be measured, however, and properly should be measured by the expectations and lifestyle which she has over the years, called in the somewhat archaic language adopted in the case, "the level of maintenance appropriate to her station in life".

9. The defendants acknowledged that their circumstances were, as the judge held, "on a scale quite out of proportion to the circumstances which the wage earned by their sister, the plaintiff, would have made possible for her."(judgment, page 3) When he came to consider the financial resources and financial needs of the defendants under (section 3 (1)(c), he found that they had no relevant needs, which was clearly the position on the facts of this case. The size of the net estate of the deceased both at the time of death and the time of the hearing was relevant, (section 3 (1)(e). Subsection (1)(g) requires the court to have regard to:-

"any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant."

The other matters to which the court is to have regard in section 3 do not apply to this case other than subsection (5) to which I shall refer to later in this judgment.

10. Provision for an adult daughter.

Mr Crawford`s first main submission is based upon the decision in re Coventry, (supra). He argued that re Coventry laid down the principle that an adult child could not come within the Act unless he or she was able to establish either a moral claim by the adult child/moral obligation by the deceased parent or some other special reason to demonstrate why it was unreasonable that no or no greater provision was made for that adult child out of the estate. The applicant in re Coventry was 46 and was earning a modest income as a chauffeur and his expenses exceeded his assets. It seems apparent that two members of this court were troubled by his poor financial position but did not feel justified in interfering with the decision of the trial judge. Geoffrey Lane LJ said at page 492:-

" Now whatever the rights and wrongs of this matter may be, it seems to me that this was par excellence a case in which the decision of the judge should stand as to what is reasonable and what is not reasonable, unless it is clearly shown that he has gone wrong on a point of law, or in some way has misapplied the facts of the case to the law. "

He then made particular reference to discouraging appeals in the case of small estates. The estate was small and the beneficiary was the elderly widow who had been separated from the deceased for about 19 years and was herself of modest means.

11. Oliver J said at page 475:-

"It cannot be enough to say " here is a son of the deceased: he is in necessitous circumstances; there is property of the deceased which could be made available to assist him but which is not available if the deceased`s dispositions stand; therefore those dispositions do not make reasonable provision for the applicant." There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made."

In this court the above passage from Oliver J`s judgment came under careful scrutiny and Goff LJ said at page 487:-

" But it was said that in three ways Oliver J fell into error. .....Secondly he in effect made a moral obligation a precondition of such an application succeeding .......

I reject the second of those criticisms at once. Oliver J nowhere said that a moral obligation was a prerequisite of an application under section 1 (1)(c); nor did he mean any such thing. It is true that he said a moral obligation was required, but in my view that was on the facts of this case, because he found nothing else sufficient to produce unreasonableness."

The reasons for the decision in re Coventry were neatly described by Nourse LJ in re Jennings decd. [1994] Ch 286 at page 295:-

"It was established by the decisions of Oliver J and this court in re Coventry decd. that, on an application by an adult son of the deceased who is able to earn, and earns, his own living there must be some special circumstance, typically a moral obligation of the deceased towards him, before the first question can be determined in his favour. Although the decisions were in terms confined to the case of a son, the principle of them is applicable no less to the case of a daughter and, with developments in the structure of society, instances of its application in such cases may become more common. In that case Oliver J was of the opinion that financial provision was reasonably required for the applicant`s maintenance. But his application failed because the deceased owed him no moral or other obligation and no other special circumstance was shown."

12. I do not, for my part, extract from the decisions in re Coventry and re Jennings, the degree of support for the defendants` case that Mr Crawford has submitted. It is clear to me that the 1975 Act does not require, in an application under section 1 (1)(c), that an adult child, (whether son or daughter), has in all cases to show moral obligation or other special circumstance. But on facts similar to those in re Coventry and even more so with the comparatively affluent applicant in re Jennings, if the facts disclose that the adult child is in employment, with an earning capacity for the foreseeable future, it is unlikely he will succeed in his application without some special circumstance such as a moral obligation. The judge expressly found that there was no moral obligation or responsibility to be found in this case.
13. The facts found by the judge showed that the plaintiff had been approaching the end of her working life at the death of her father and at the date of the hearing was 69 and had long retired. She no longer had an earning capacity or any hope of improving her condition in life. Although she lived with Mr Pearce she was not married to him and both were in modest financial circumstances, hers being described as I have already set out as stringent. As the judge expressed it at page 18 of his judgment:-

"there is no doubt that her needs are greater, her prospects more dismal than they were ten years ago, and the estate against which her claim is made is significantly greater than it was thought to be at the date of the application."

From the will itself it is clear that the deceased was well-disposed to the plaintiff and recognised that some provision ought, if resources permitted, to be made for her and other identified members of the family. It is equally clear from the circumstances surrounding the will and from the judge`s finding that with a modest estate the surviving spouse, the widow, had to take priority and receive the remainder of the estate.

14. Mr Crawford invited our attention to the passage in the judgment of Goff LJ in re Coventry at page 488:-

"Indeed, I think any view expressed by a deceased person that he wishes a particular person to benefit will generally be of little significance, because the question is not subjective but objective. An express reason for rejecting the applicant is a different matter and may be very relevant to the problem."

That principle of course governs the approach of the court to the assessment required to be made by the Court of the reasonableness of the provision or lack of provision. A good reason to exclude a member of the family has to be a relevant consideration. However, in my view, the recognition by the testator of the status of members of his family and his goodwill towards them and in this case towards the plaintiff are factors which it is proper to take into account under section 3 (1)(g) and it is for the court to give such weight to those factors as may in the individual case be appropriate. In my view, despite Mr Crawford`s argument to the contrary, the judge was entitled to take clause (6) of the will into account in making his value judgment as to the reasonableness of the provision after the increase of the value of the estate.

15. The judge did take into account the conduct of the plaintiff and found that she had given a deliberately misleading account of her circumstances with Mr Pearce, and also of her contribution to the family. He was critical of her evidence. The extent to which such conduct is to be taken into account is pre-eminently a matter for the trial judge and Judge Rich did not attach much importance to it.
16. In my judgment, on the facts of this case, which the judge said were certainly unusual and markedly different from the facts in re Coventry, the judge was not obliged to find a special circumstance, such as a moral obligation. He was entitled to look at all the relevant matters as enjoined under section 3 and, subject to the second argument of Mr Crawford, to make the decision that he did.
17. Delay.

The deceased died in 1985. The plaintiff`s application was just within the time limit required by section 4 of the 1975 Act. But it was not heard until the end of 1996, some 11 years after the death of her father. The judge looked at the most important period, that between the death of the father in 1985 and the sale of Plot 3 in 1989 and came to the conclusion that the plaintiff was not to blame for that delay. Thereafter there was no evidence of any change in the value of the estate. The judge did not find or apportion blame in respect of any party for any period in the 10 years. Since there was no application to strike out and no criticism by the judge, it is not open, in my view, for Mr Crawford to lay the blame of the length of time between application and hearing at the door of the plaintiff. It is the fact that, if the application had been heard before 1989, the plaintiff would have failed, since the judge held that at the time of the death in 1985 the failure to provide for the plaintiff out of the estate was not unreasonable.

18. Mr Crawford submitted to us first that the court ought not to look at all at the increase of the value of the estate in 1989. Second if the court did take the windfall into account, it should give it little or no weight. Neither argument can stand in the light of the clear words of section 3(5):-

"In considering the matters to which the court is required to have regard under this section, the court shall take into account the facts as known to the court at the date of the hearing."

My view is supported by Goff LJ in re Coventry who said at page 491G :-

"Reliance was placed on section 3(5) as entitling us to have regard to those subsequent events, and I think the true meaning of that section must be that the court is required to have regard to facts known to it at the date of the hearing, and not merely any further knowledge that the court may have acquired about the facts as they were."

19. Applying the approach of Goff LJ and rejecting the view that section 3(5) only allows `hindsight` to be taken into account, there is no other line that can sensibly be drawn in point of time until the date of the hearing and the net estate has to be considered as at that latter date. The definition of `net estate` which is incorporated by section 3 (1)(e) into the first issue which the court has to address, that is to say, was the provision or lack of provision such as to make reasonable financial provision for the applicant, shows by the inclusion of funeral, testamentary and administration expenses (section 25(a))that events and liabilities after the death have to be taken into account. Clearly the change in the size of the estate, up or down, is a relevant fact for the court at the date of the hearing. The length of time the case took to come to court is a matter which the court, may, where appropriate, take in to account under (g), particularly if there is any blame to attach to any of the parties. Any prejudice resulting, for instance, to a defendant to the application as a result of the delay would also be a relevant consideration.
20. There was no culpability in the delay in this case and no prejudice to any party. The judge did not, in my judgment, err in principle in his approach to the increase in the size of the estate nor in the decision to which he came. A judge making a decision at the first stage, although he does not exercise a discretion, does make a value judgment based upon balancing the factors set out in section 3 of the 1975 Act. I would underline the general applicability of the passage in Geoffrey Lane LJ `s judgment in re Coventry at page 492 (supra) that :-

"the decision of the judge should stand as to what is reasonable and what is not reasonable, unless it is clearly shown that he has gone wrong on a point of law, or in some way has misapplied the facts of the case to the law."

I would dismiss the appeal.

LORD JUSTICE JUDGE:

I agree that this appeal should be dismissed.

On the basis of the facts set out by Butler Sloss LJ Mr Grant Crawford argued that the applicant's claim should have failed. The basis for the submission was that she had failed to demonstrate that the deceased was under any moral obligation to make financial provision for her in his testamentary disposition. Moreover she did not prosecute her claim with proper diligence. At the time when she first made a claim under the Inheritance (Provision for Family & Dependants) Act 1975 the claim would have failed. The subsequent enrichment of the appellants by the sale in July 1989 of Hancocks' Yard should not have converted what he described as a claim that was "bad" at its inception into a successful one.

The validity of these submissions depends on the terms and effect of the 1975 Act, and in particular section 3(1) which provides:

"Where an application is made for an order under section 2 of this Act, .... if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say

(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant."

"Regard" must therefore be had to the criteria set out in paragraphs 3(1)(a)-(f), each of which is specifically identified. When the financial resources within paragraphs (a)-(c) are under consideration section 3(6) requires that account be taken of the individual's "earning capacity", and his financial needs include his "financial obligations and responsibilities". Where applicable the anticipated or actual education and training of a child of the deceased must also be considered (section 3(3)). Although the word "moral" cannot be found in section 3 the language of paragraph (d)- "any obligations and responsibilities" - is wide enough to include any moral obligation to the applicant owed or accepted by the deceased.

Under paragraph (g) the court is required to have regard to "any" other matters which are relevant in the particular circumstances of the individual case. The first question under paragraph (g) is whether a point not otherwise included within paragraphs (a)-(f) as explained in paragraph 3(6), or amplified by section 3(3), is relevant. If not, plainly it must be ignored: the decision cannot be founded on an irrelevant consideration. Once it is decided that a particular feature is relevant then regard must be paid to it. In short therefore regard must be had to all the criteria identified in paragraphs (a)-(f) together with any matters falling for consideration under paragraph (g). Section 3 does not expressly prescribe considerations which must be ignored and provides no guidance about the relative importance to be attached to each of the relevant criteria.

The foundation for Mr Crawford's argument that the applicant could not succeed unless she could demonstrate that her deceased father owed her a "moral obligation" was said to be the decision in Re Coventry (deceased) [1980] 1 Ch 461. However Oliver J expressly directed himself that

"I ought not to approach this application with any pre-conceived notion that there is some especially heavy burden on a male applicant of full age beyond that which must, as a practical matter, necessarily exist when a person who applies to be maintained by somebody else is already capable of adequately maintaining himself."

In that case counsel for the plaintiff argued that a moral obligation had been created and Oliver J concluded that there was nothing in the evidence to support his submission. Accordingly the application was dismissed. The decision did not establish that a moral obligation was a necessary ingredient for a successful claim, although no doubt had one been established the applicant's claim would have been stronger. In the Court of Appeal it was argued that Oliver J had treated a "moral obligation" as a pre-condition to success. This submission was rejected. As Goff LJ observed

"Oliver J nowhere said that a moral obligation was a pre-requisite of an application ....... ; nor did he mean any such thing. It is true that he said a moral obligation was required, but in my view that was on the facts of this particular case, because he found nothing else sufficient to produce unreasonableness."

Geoffrey Lane LJ agreed with Goff LJ and Buckley LJ concluded that it was clear that "Oliver J was referring there to a moral claim as a special circumstance without which, on the facts of the present case, he could find no ground for making any provision for the plaintiff". In my judgment Re Coventry cannot be regarded as authority for the proposition that unless an adult applicant in reasonable health is able to establish a moral obligation owed by the deceased the claim is bound to fail. Such a conclusion would be contrary to the terms of section 3(1)(a)(g). The decision in Re Coventry was considered in Re Jennings (deceased) [1994] Ch 286 where Nourse LJ concluded that in the case of an application by an adult son of the deceased who was fit and able to work, and in work, some "special circumstance, typically a moral obligation" was required. The application "failed because the deceased owed him no moral or other obligation and no other special circumstance was shown". The use of the word "typically" is revealing. Nourse LJ did not say "invariably" or "necessarily". If he had done so he would have been using language which does not appear among the statutory criteria. Accordingly while accepting that a claim by an adult with an established earning capacity may very well fail if a moral claim or special circumstance cannot be established, in an appropriate case the court is entitled to conclude that the claim should succeed notwithstanding their absence.

Precisely the same considerations apply to the question of delay. Although section 4 of the Act prescribes that an application should be made within six months from the date on which representation is first taken out (subject to a discretion to extend this time) the word "delay", like the word "moral" cannot be found in section 3. Instead by section 3(5) the prescribed time for consideration of the relevant matters is "the date of the hearing". The language is unambiguous. At that time the court will have to make decisions about some things which have already happened and others which lie in the future: hence "obligations and responsibilities which the deceased had" and "where relevant the conduct of the applicant" together with express references to "foreseeable future" considerations in paragraphs 3(a)-(c). Thus whether the court is considering past or attempting to predict future events and assessing the relevant criteria it must do so on the basis of the facts as it finds them to be at the date of the hearing.

There will no doubt be cases in which the applicant's behaviour, including delay, will have prejudiced the position of others with an interest in the deceased's estate, or, even if not quite amounting to an abuse of process, can reasonably be considered to have involved unacceptable manipulation of it. All such matters may be relevant in a given case; so too, may be a change of circumstances in the course of the proceedings themselves. Thus if the value of the estate has increased during the period of delay then that may advantage the applicant: if on the other hand it has been reduced, or even, as may happen if an estate is founded on a family business or invested in a collapsing stock market, been virtually extinguished, then the applicant may be disadvantaged. Again, the circumstances of any beneficiary of the estate may have improved or deteriorated: this too may have an impact on the claim by the applicant. Delay may therefore be a matter for consideration under paragraph (g), and if it is, its cause and impact should be evaluated by the court when analysing the statutory criteria and forming the judgment required by the Act.

In my judgment the criticisms made by Mr Crawford are not sustained. The trial judge applied the relevant criteria. He formed a balanced judgment on the relevant facts. No basis for interfering with his conclusion has been shown.

SIR JOHN KNOX:

I agree with the judgments given by Butler Sloss and Judge L.J.J. I would add the following on each of the two main issues identified by Butler Sloss L.J.

Failure to make reasonable financial provision?

In the interests of brevity I omit reference to maintenance in connection with financial provision. In the great majority of contested applications the court is involved in a balancing exercise among the many factors to which s.3 of the 1975 Act requires the court to have regard. Some factors may be neutral but many will go in the scales either in favour of or against the proposition that there has been a failure to make reasonable financial provision for the applicant. In Re Coventry, supra, there was placed in the scales a factor of major weight against the proposition that there had been a failure to make reasonable financial provision and that was that the plaintiff was capable of earning, and was earning, his living. This meant that for the scales to be turned and for the court to find that there had been a failure to make reasonable financial provision for the plaintiff a factor of great weight would be needed in the opposite scale. Typically, the weightiest factor in favour of an applicant seeking to show that there has been a failure to make reasonable financial provision for him or her, is present when there is found to have been a moral obligation on the deceased to make financial provision for the applicant. But that factor was held by Oliver J. not to be present in Re Coventry. At p.475 he said "It cannot be enough to say "here is a son of the deceased: he is in necessitous circumstances: there is property of the deceased which could be made available to assist him but which is not available if the deceased's dispositions stand; therefore those dispositions do not make reasonable provision for the applicant". There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of the estate beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made." That approach was upheld by this court but, as has been pointed out in both the judgments of Butler Sloss and Judge L.J.J., the argument that Oliver J. had made a moral obligation on the deceased a prerequisite of a successful application was rejected. Oliver J. did hold that in the circumstances which existed in Re Coventry a factor in addition to the plaintiff's blood relationship and necessitous state was needed for the scales to tip in his favour. The reference in the passage I have quoted to the need for a moral claim is not the same as a finding that the scales could only tip in the plaintiff's favour if it could be shown that the deceased was under a moral obligation to provide for the plaintiff. Mr Grant Crawford's argument that an adult child cannot make a successful application, unless he or she can establish a moral obligation by the deceased or some other special reason to show that there was a failure to make reasonable provision, is only correct to the extent that it means that there must be some reason for the court to decide that the scales fall in favour of the conclusion that there has been a failure to make reasonable financial provision. So limited, the submission is a truism which does not advance the argument. What is not permissible is to use Re Coventry, or indeed any other authority, to establish that any particular factor has to be placed on one side or the other of the scales. Of course there has to be a reason justifying a court's conclusion that there has been a failure to make reasonable financial provision but the use of the phrase "special circumstance" does not advance the argument. The word "special" means no more than what is needed to overcome the factors in the opposite scale.

Re Coventry, besides providing a vivid illustration of the weight, as a factor in one scale, of the ability of an applicant who is capable of earning and does earn his or her living, is authority, particularly in the Court of Appeal decision, that there is no single essential factor for the success or failure of an application under the Act. Ewbank J. made this clear in Re Debenham deceased [1986] 1 FLR 404 when he said at p.410 "It is also said on behalf of the charities that before I can make an order I will have to find that there were special circumstances outside the range of circumstances listed in s.3 of the Act. It is said that this can be derived from the case of Re Coventry above but I do not read the case of Coventry in that light. That was relating to a grown up man who was capable of working, and a judge, with whom the Court of Appeal agreed, said that if a grown up man capable of working was going to make an application under the Act he would look for special circumstances. So one would. But that is not a question of law; it is a question of applying common sense principles..."

Delay

The present case is remarkable both in the length of the delay between the death of the testator and the date of the hearing and in the scale of the alteration in the size of the testator's net estate between those dates. Mr Grant Crawford, when asked what the effect would be of a catastrophic fall in the size of the estate between the date of the deceased's death and the date of the hearing, perforce accepted in argument that the court would have regard to the size of the net estate at the date of the hearing in deciding what provision should be made for an applicant but he submitted that this was limited to the second stage of the court's decision, namely what award should be made and would not apply to the first stage, namely, to the decision whether there had been a failure to make reasonable financial provision for the applicant. I can see no basis for any such difference in approach to the two stages which the court has to go through before deciding that an application under the Act succeeds. No authority was cited for it. More significantly, it is in my view in conflict with the scheme of s.3(1) of the Act which so far as relevant reads:

"Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition, of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its power under that section, have regard to the following matters that is to say ..."

and there follows the list of such matters. It is quite clear that both the two questions which the court has to consider before making an award have to be decided in the light of the same matters and that there is no justification to be found in the Act for having regard to different matters in answering one question from those to which regard is had in answering the other.

I agree the appeal should be dismissed.

Order: Appeal dismissed with costs against the fourth to eighth defendants; legal aid taxation of the respondent's costs.